human rights – Sheila Kennedy

Twenty-First Century Puritans

Being out on the ocean prompts reflection…

When I taught Law and Public Policy, I approached the material through a constitutional lens, because I was–and remain–convinced that a basic understanding of American history and the philosophy that shaped what I call “the American Idea” is critically important for anyone hoping to understand today’s politics.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way people today understand and define human rights and individual liberty.

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.

Puritans saw liberty pretty much the same way current politicians like Mike Pence and Mike Johnson do– as “freedom to do the right thing” as they definied it. That meant their own freedom to worship and obey the right God in the true church, and it included their right to use the power of government to ensure that their neighbors did likewise.

The Founders who crafted the American constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on the Enlightenment concept of liberty, not the Puritan version. It’s an approach we sometimes call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government (nor necessarily “God given” either). Most of them–especially the Deists– believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

That philosophical construct is why–contrary to popular belief–the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human, and it protects them against infringement by an overzealous government. As I used to tell my students, the American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

Most Americans today live in a post-Enlightenment culture. We accept and value science. We understand liberty to mean our right to live our lives free of government control so long as we are not harming others, and so long as we respect the right of other people to do likewise. But there is a persistent minority that has never accepted an Enlightenment worldview, and that minority currently controls the Republican Party. These contemporary Puritans–who, along with their other religious convictions tend to see Black people and non-Christians as unworthy subordinates– use the word “freedom” in the older, Puritan sense of “freedom to do the right thing” as their reading of their holy book defines “the right thing.” They also believe it is government’s job to make other citizens do the “right thing” –to impose their version of “Godliness” on the rest of us.

These contemporary Puritans are throwbacks to the early American settlers who defined “liberty” as the imposition of the correct religion on their neighbors. The Enlightenment construct of “live and let live”–the notion that each of us should have the right to believe as we wish, the right to follow our own set of moral imperatives (again, so long as we are not harming the person or property of someone else) was utterly foreign to those original Puritans, and it is evidently equally inconceivable to their philosophical descendants.

(Interestingly, these throwbacks to Puritanism never seem to doubt that they know precisely what God wants–that, as a friend once put it, God hates the same people they do. But that’s a phenomenon for a different post.)

If you had told me ten years ago that American government would once again be under the thumb of Puritans, I wouldn’t have believed it. But here we are–with a Speaker of the House of Representatives who is a full-blown Puritan throwback and a Republican Party that has rejected the Enlightenment.

When I have computer problems, I reboot. That usually returns my laptop to working order. Can we reboot America?

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Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer, as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a philosophical and cultural departure from the then-widespread belief in the divine right of kings and the concomitant disregard for the rights of common folks. For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.

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Limiting Power

Credit where credit is due: not only has the Trump administration rekindled civic engagement (scholars tell us that the number of people on the streets protesting exceeds the number who protested the Vietnam War), but his accidental ascension to the Presidency has highlighted the need to revisit constitutional provisions that no longer serve their intended purposes.

The problem, of course, is that We the People are too divided and too historically and civically illiterate to be trusted with the task of constitutional revision.

When–and if–the time ever comes that we are capable of making careful revisions to our foundational document, there are a number of issues to consider. The most obvious, of course, is the Electoral College, but there are also several aspects of federalism that should be reconsidered in light of contemporary technology and transportation. For example, there is no reason elections should continue to be administered by the states. A national, nonpartisan agency could maintain a national registration database, ensure standardized procedures and hours, and dramatically curtail partisan game-playing of the sort we’ve seen in Georgia and the incompetence Hoosiers experienced in Porter County, Indiana.

There is an even more significant assumption that we need to re-think.

The American Constitution limits the power of the state. It was written at a time when governments were the entities wielding the most power, and focusing on the state made sense because constraining power was the whole point. The protection of personal autonomy–our individual right to direct our own lives, so long as we don’t harm the person or property of others and so long as we are willing to let others do the same–was the goal, and it required restraints on power.

I thought about that when I read this article from Common Dreams. Today, many governments are less powerful than multi-national corporations.

As corporations in the United States and around the world continue to reap record profits thanks to enormous tax cuts, widespread tax avoidance schemes, and business-friendly trade and investment policies, an analysis by Global Justice Now (GJN) published Wednesday found that the world’s most profitable companies are raking in revenue “far in excess of most governments,” giving them unprecedented power to influence policy in their favor and skirt accountability.

Measured by 2017 revenue, 69 of the top 100 economic entities in the world are corporations, GJN found in its report, which was released as part of an effort to pressure the U.K. government to advance a binding United Nations treaty that would hold transnational corporations to account for human rights violations.

“When it comes to the top 200 entities, the gap between corporations and governments gets even more pronounced: 157 are corporations,” GJN notes. “Walmart, Apple, and Shell all accrued more wealth than even fairly rich countries like Russia, Belgium, Sweden.”

As difficult as it can be to subject governments to the rule of law, constitutions and legal systems do provide mechanisms to hold them accountable. By contrast, it is incredibly difficult for citizens to hold powerful corporations to account. Increasingly, as the article notes, trade and investment deals allow corporations to demand that governments do their bidding rather than the other way around.

“From a coal mine in Bangladesh that threatens to destroy one of the world’s largest mangrove ecosystems to hundreds of people at risk of displacement from a mega-sugar plantation in Sri Lanka, corporations and big business are often implicated in human rights abuses across Asia” and the world, Friends of the Earth Asia Pacific noted in a blog post on Wednesday, describing the U.N. treaty as a potential “game-changer.”

“Companies are able to evade responsibility by operating between different national jurisdictions and taking advantage of corruption in local legal systems, not to mention the fact that many corporations are richer and more powerful than the states that seek to regulate them,” Friends of the Earth concluded. “We must right this wrong.”

The question, of course, is how?

It is becoming increasingly clear that massive reforms to global law and governance will be required if human liberty is to survive the changes that increasingly confront us. Given the numbers of people who have an overwhelming fear of change and who respond by embracing tribalism and autocracy, the odds of a successful “reboot” look pretty daunting.

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Human Rights, Equal Rights, Political Rights

Last night, I spoke at the annual dinner of the Columbus, Indiana, Human Rights Commission. Here’s what I said (sorry for the length…):

________________________

Over the past several years, American political debate has become steadily less civil. Partisan passions have overwhelmed sober analysis, and the Internet allows people to choose their news (and increasingly, their preferred realities). During the recent election cycle, it was clear that in many cases, Americans were talking past each other rather engaging with opponents through thoughtful public discourse.

I am firmly convinced that an enormous amount of this rancor and partisan nastiness is a result of what I call civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government. I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%
What do we call the first ten amendments to the Constitution? 26%
What are the two parts of the U.S. Congress? 27%
Who wrote the Declaration of Independence? 14%
What are the two major political parties in the United States? 43%
We elect a U.S. senator for how many years? 11%
Who was the first President of the United States? 23%

Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power. (There’s a lot more depressing research on IUPUI’s Center for Civic Literacy website.)

Why does it matter? Well, for one thing, productive civic engagement is based on an accurate understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame policy choices in the American system.

Understanding the history and philosophy that shaped what I call “the American Idea” is critically important for understanding the roots of our national approach to human rights.

The American Constitution was a product of the 18^th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty.

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty. Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to ensure that their neighbors toed the same line. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on an Enlightenment concept we call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t understand that.

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about human rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in multifamily buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then the broader society is not respecting the human rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about the divine right of kings. Gradually, people came to be seen as citizens, rather than subjects. The new concept of human rights also helped to undermine the once-common practice of assigning social status on the basis of group identity.

The once-radical idea that each of us is born with the same claim to human rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of a group. America was the first country to base its laws upon a person’s civic behavior, not gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender or other identity. When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentments, religious intolerance and misogyny, we have made substantial progress toward a culture that acknowledges the equal humanity of the people who make up our diverse nation. So on that scale, good for us!

In addition to civic equality, however, respect for human rights also requires democratic equality—an equal right to participate in self-government. We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension of human rights, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and conventions and laws shape our understanding of our environments, and obscure our recognition of social problems. Right now, longstanding practices are obscuring the degree to which American democracy is becoming steadily less democratic—and the extent to which we are denying citizens the human right to participate meaningfully in self-government.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. Thanks to population shifts, the current operation of the Electoral College gives disproportionate weight to the votes of white rural voters, and discounts the franchise of urban Americans. Ever since Buckley v. Valeo, which equated money with speech, and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes and opinions of average citizens.

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both political parties are guilty.

Those of you in this room know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and they draw districts that maximize their own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Republican Norman Orenstein and Democrat Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and they have also pointed out that the reliance by House candidates upon maps drawn by state-level politicians has reinforced what they call “partisan rigidity”– the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, the researchers found that politically independent redistricting did reduce partisanship, and in statistically significant ways, even when the same party retained control.

Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice. Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance is a human right, partisan game-playing that makes elections meaningless should be seen as an assault on human rights. And increasingly, it is.

Safe districts do more than disenfranchise voters; they are the single greatest driver of governmental dysfunction. In safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties, each with an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

A study done by researchers at the University of Chicago concluded that Indiana is the fifth most gerrymandered state in the country. We had a chance to change that system in the just-concluded legislative session; Representative Jerry Torr, a good government Republican, introduced a measure that was co-sponsored by Brian Bosma, the Republican Speaker of the House. Thanks to efforts by the League of Women Voters and Common Cause, the public came out in droves from all over Indiana in a massive show of support for the bill; however, the chair of the Elections Committee, Milo Smith, refused to allow his committee even to vote on it, and killed it.

In the United States, we tend to think of Human Rights in terms of legal rights: equality before the law, an equal right to participate in democratic governance and to have our preferences count at the ballot box. But most of us recognize the existence of non-legal challenges to full realization of equal human rights. Poverty is one; a citizen working two or three jobs just to put food on the table doesn’t have much time for civic engagement, and in Indiana, that’s a lot of people.

In 2014, the United Ways of Indiana took a hard look at “Alice.” Alice is an acronym for Asset Limited, Income Constrained, Employed; it applies to households with income above the federal poverty level, but below the actual, basic cost of living. The report was eye-opening.

More than one in three Hoosier households cannot afford the basics of housing, food, health care and transportation, despite working 40 or more hours a week.
In Indiana, 37% of households live below the Alice threshold, with some 14% below the poverty level and another 23% above poverty but below the cost of living.
These families and individuals have jobs, and most do not qualify for social services or support.
The jobs they are filling are critically important to Hoosier communities. These are our child care workers, laborers, movers, home health aides, heavy truck drivers, store clerks, repair workers and office assistants—yet they are unsure if they’ll be able to put dinner on the table each night.

ALICE families don’t have time or energy for civic participation or political engagement through which to exercise their human and civil rights. Human Rights Commissions lack the jurisdiction to address ALICE inequities, but we all need to recognize that people preoccupied by a daily struggle for subsistence are unable to participate fully in the formation and conduct of civic society.

How can our civic institutions—including local Human Rights Commissions– help guarantee citizens’ human rights?

Human Rights Commissions can act when employers or owners of public accommodations violate local ordinances. Indiana also has a civil rights law, although it currently omits protection against discrimination based upon sexual orientation and gender identity, and the federal government has several agencies charged with enforcement of civil rights—although recent statements from Administration officials have called their commitment to doing so into question. Local to federal, these agencies are important, and the work they do is critical to social stability and fundamental fairness.

Critical as they are, there are rights violations these agencies cannot address or solve. Reversing the erosion of America’s democratic norms, turning back the assault on equal access to the ballot box, and fixing the gerrymandering that makes too many votes meaningless will require political action and persistent civic engagement by an informed, civically-literate citizenry. We all have a stake in improving civic knowledge and encouraging informed participation, because safeguarding human rights ultimately depends upon the existence of a civically-informed electorate.

It won’t be easy, but We the People can do this.

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Institutionalizing the ‘Macaca moment’

You’d have to be hiding under a rock not to notice the multiple ways in which the Internet has changed politics. Back when I first became politically active, I used to write direct mail pieces for candidates; that was a time when you could tailor one message for moms, one for firefighters, etc. Candidates who weren’t too scrupulous could and did use direct mail to take positions that were–shall we say– inconsistent with each other. Candidates could also make speeches to certain audiences that they wouldn’t necessarily want broadcast more widely.

The Internet has made that sort of micro-targeting virtually impossible.

The most-cited example: When George Allen was running for Senate from Virginia (yes, he’s doing that again), he stopped mid-speech to point out a young man filming the talk for his opponent. The volunteer was an American of Indian ancestry, and Allen referred to him as ‘macaca’–a term later determined to be a racist epithet in the country Allen’s mother had come from. The young volunteer uploaded the film to You Tube, and the rest, as they say, is history: the clip went viral, prompting reporters to take a closer look at Allen’s other racially-charged behaviors, Allen lost an election in which he had been heavily favored, and “macaca moment” became part of our political vocabulary.

Just as television brought the Viet Nam war into American living rooms, and arguably sparked the anti-war movement, You Tube and similar technologies give an immediacy and impact to events we might otherwise shrug off or ignore.

Now, You Tube has decided to play a more intentional role in world affairs. It has just announced a Human Rights channel. As the announcement put it:

In the case of human rights, video plays a particularly important role in illuminating what occurs when governments and individuals in power abuse their positions. We’ve seen this play out on a global stage during the Arab Spring, for example: during the height of the activity, 100,000 videos were uploaded from Egypt, a 70% increase on the preceding three months. And we’ve seen it play out in specific, local cases with issues like police brutality, discrimination, elder abuse, gender-based violence, socio-economic justice, access to basic resources, and bullying.

This is going to get interesting.